Modification of Registration Requirement for Petitioners Seeking To File Cap-Subject H-1B Petitions; Delay of Effective Date, 8543-8548 [2021-02665]
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8543
Rules and Regulations
Federal Register
Vol. 86, No. 24
Monday, February 8, 2021
This section of the FEDERAL REGISTER
contains regulatory documents having general
applicability and legal effect, most of which
are keyed to and codified in the Code of
Federal Regulations, which is published under
50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by
the Superintendent of Documents.
DEPARTMENT OF HOMELAND
SECURITY
8 CFR Part 214
[CIS No. 2680–21; Docket No: USCIS 2020–
0019]
RIN 1615–AC61
Modification of Registration
Requirement for Petitioners Seeking
To File Cap-Subject H–1B Petitions;
Delay of Effective Date
U.S. Citizenship and
Immigration Services (USCIS), U.S.
Department of Homeland Security
(DHS).
ACTION: Final rule; delay of effective
date; request for comments.
AGENCY:
On January 8, 2021, DHS
published a final rule, Modification of
Registration Requirement for Petitioners
Seeking To File Cap-Subject H–1B
Petitions (H–1B Selection Final Rule)
amending regulations governing the
process by which U.S. Citizenship and
Immigration Services (USCIS) selects
H–1B registrations for the filing of H–1B
cap-subject petitions (or H–1B petitions
for any year in which the registration
requirement is suspended), by generally
first selecting registrations based on the
highest Occupational Employment
Statistics (OES) prevailing wage level
that the proffered wage equals or
exceeds for the relevant Standard
Occupational Classification (SOC) code
and area(s) of intended employment.
The Department is delaying the rule’s
effective date until December 31, 2021,
because USCIS will not have adequate
time to complete system development,
thoroughly test the modifications, train
staff, and conduct public outreach
needed to ensure an effective and
orderly implementation of the H–1B
Selection Final Rule by the time the
initial registration period will be open
for the upcoming fiscal year (FY) 2022
H–1B cap season. During the delay,
while USCIS works through the issues
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SUMMARY:
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associated with implementation, DHS
leadership will also evaluate the January
8th rule and its associated policies, as
is typical of agencies at the beginning of
a new Administration.
DATES: As of February 8, 2021, the
effective date of the final rule published
January 8, 2021, at 86 FR 1676, is
delayed to December 31, 2021. DHS is
accepting public comments on this
delay until March 10, 2021.
ADDRESSES: You may submit comments
on the entirety of this final rule package,
identified by DHS Docket No. USCIS–
2020–0019, through the Federal
eRulemaking Portal: https://
www.regulations.gov. Follow the
website instructions for submitting
comments. Comments submitted in a
manner other than the one listed above,
including emails or letters sent to DHS
or USCIS officials, will not be
considered comments on this final rule
and may not receive a response from
DHS. Please note that DHS and USCIS
cannot accept any comments that are
hand-delivered or couriered. In
addition, USCIS cannot accept
comments contained on any form of
digital media storage devices, such as
CDs/DVDs and USB drives. Due to
COVID–19, USCIS is also not accepting
mailed comments at this time. If you
cannot submit your comment by using
https://www.regulations.gov, please
contact Samantha Deshommes, Chief,
Regulatory Coordination Division,
Office of Policy and Strategy, U.S.
Citizenship and Immigration Services,
Department of Homeland Security, by
telephone at 240–721–3000 for alternate
instructions.
FOR FURTHER INFORMATION CONTACT:
Charles L. Nimick, Chief, Business and
Foreign Workers Division, U.S.
Citizenship and Immigration Services,
5900 Capital Gateway Drive, Camp
Springs, MD 20746; telephone 240–721–
3000 (this is not a toll-free number).
Individuals with hearing or speech
impairments may access the telephone
number above via TTY by calling the
toll-free Federal Information Relay
Service at 1–877–889–5627 (TTY–TDD).
SUPPLEMENTARY INFORMATION:
I. Public Participation
DHS invites all interested parties to
participate in this rulemaking by
submitting written data, views,
comments, and arguments on all aspects
of this final rule. DHS also invites
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comments that relate to the economic,
environmental, or federalism effects that
might result from this final rule.
Comments must be submitted in
English, or an English translation must
be provided. Comments that will
provide the most assistance to DHS in
implementing these changes will:
reference a specific portion of the final
rule; explain the reason for any
recommended change; and include data,
information, or authority that supports
such a recommended change.
Comments submitted in a manner other
than those listed in the ADDRESSES
section, including emails or letters sent
to DHS or USCIS officials, will not be
considered comments on the final rule.
Please note that DHS and USCIS cannot
accept any comments that are handdelivered or couriered. In addition,
USCIS cannot accept mailed comments
contained on any form of digital media
storage devices, such as CDs/DVDs and
USB drives.
Instructions: If you submit a
comment, you must include the agency
name (U.S. Citizenship and Immigration
Services) and the DHS Docket No.
USCIS–2020–0019 for this rulemaking.
Regardless of the method used for
submitting comments or material, all
submissions will be posted, without
change, to the Federal eRulemaking
Portal at https://www.regulations.gov,
and will include any personal
information you provide. Therefore,
submitting this information makes it
public. You may wish to consider
limiting the amount of personal
information that you provide in any
voluntary public comment submission
you make to DHS. DHS may withhold
information provided in comments from
public viewing that it determines may
impact the privacy of an individual or
is offensive. For additional information,
please read the Privacy and Security
Notice available at https://
www.regulations.gov.
Docket: For access to the docket and
to read background documents or
comments received, go to https://
www.regulations.gov, referencing DHS
Docket No. USCIS–2020–0019. You may
also sign up for email alerts on the
online docket to be notified when
comments are posted or a final rule is
published.
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II. Background
On January 8, 2021, DHS published
the H–1B Selection Final Rule,
Modification of Registration
Requirement for Petitioners Seeking To
File Cap-Subject H–1B Petitions,
amending regulations governing the
process by which USCIS selects H–1B
registrations for the filing of H–1B capsubject petitions (or H–1B petitions for
any year in which the registration
requirement is suspended). Under the
rule, USCIS would generally select
H–1B registrations based on proffered
wages and corresponding prevailing
wage levels. Specifically, USCIS would
first select registrations with proffered
wages that meet or exceed the highest
OES prevailing wage level for the
relevant SOC code and area(s) of
intended employment.1
The H–1B Selection Final Rule is
currently scheduled to go into effect on
March 9, 2021. As discussed in greater
detail below, after further consideration,
USCIS has determined that the final
rule’s 60-day effective date does not
afford USCIS sufficient time between
the publication of the rule on January 8,
2021, and March 9, 2021, to complete
the development and thoroughly test the
modifications needed in the H–1B
registration system to sufficiently
minimize technical risks that result
from a compressed testing schedule, as
well as to amend policies and train staff
to ensure the effective and orderly
administration of the cap under the
H–1B Selection Final Rule. By this
action, DHS is delaying the H–1B
Selection Final Rule until December 31,
2021, and is applying the regulations
currently in place (random selection) to
the initial registration period, and, most
likely, any subsequent registration
period for the FY 2022 registration
process.
DHS expects that delaying the rule to
December 31, 2021, will provide USCIS
sufficient time to develop, thoroughly
test, and implement the modifications to
the registration system and selection
process and give stakeholders sufficient
time to adjust to new procedures arising
from the new rule. The publication of
1 86 FR 1676. The H–1B Selection Final Rule was
approved by Chad F. Wolf in his capacity as Acting
Secretary of Homeland Security. DHS is aware that
multiple courts have indicated or held that Mr.
Wolf did not have valid authority to act, and,
therefore, did not have authority to sign rules in
that capacity. DHS also is aware that, following
issuance of the rule, Peter T. Gaynor and Mr. Wolf
took steps to ratify the H–1B Selection Final Rule.
See DHS Delegation No. 23028, Delegation to the
Under Secretary for Strategy, Policy, and Plans to
Act on Final Rules, Regulations, and Other Matters
(Jan. 12, 2021); Chad F. Wolf, Ratification (Jan. 14,
2021). By issuing this rule, DHS states no position
on Mr. Gaynor’s or Mr. Wolf’s actions or authority.
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the final rule on January 8, 2021,
finalized a new selection process
requiring, from a technical standpoint,
that a new algorithm be developed,
thoroughly tested, and implemented in
the form of an electronic registration
tool. The publication date of the final
rule only affords six weeks of
development time, and less than two
weeks to complete internal end-to-end
testing and external performance testing
with DHS OneNet, the DHS network.
The selection logic is a fundamental
part of the registration tool, and the
H–1B Selection Final Rule created more
complexity in the logic calculation by
adding several versions of lotteries that
must be developed, thoroughly tested
and implemented. This additional
complexity essentially requires a
complete rebuilding of the registration
tool that was developed for the FY 2021
selection process.2 In light of these
technical challenges, DHS now believes
that there is not adequate time to
develop and thoroughly test the new
H–1B registration system, conduct
training and provide outreach on such
changes to the regulated public prior to
the start of the FY22 initial registration
period.3
As indicated below, DHS wants to
ensure the orderly and efficient
administration of the H–1B numerical
allocations and wants to avoid
disruption to the regulated public by
affording itself sufficient time to fully
modify and thoroughly test the changes
to the H–1B registration system,
minimize technical risks that result
from a compressed testing schedule, and
provide the regulated public enough
time to become familiar with those
2 Development of the new system has been
ongoing since publication of the final rule, however
current estimates indicate that development work
will not be complete before February 19, 2021.
Testing of the system may commence upon
completion of system development, which only
leaves one to two weeks (depending on when the
initial registration period opens), in a best case
scenario, to test the system, identify any bugs,
conduct additional development to resolve
identified bugs, complete additional testing to
ensure proper functionality, conduct internal
training, and provide outreach to the public.
3 The Registration Requirement for Petitioners
Seeking to File H–1B Petitions on Behalf of CapSubject Aliens Final Rule, 84 FR 888 (Jan. 31, 2019),
made clear that implementation of the registration
tool requires significant development, testing and
stakeholder outreach that cannot reasonably happen
in a few weeks. As a result, DHS delayed
implementation of the initial registration process
for a full year to develop, test, and conduct
stakeholder outreach. The H–1B Selection Final
Rule would also benefit from a similar delay to
develop, thoroughly test, and conduct stakeholder
training on the modified registration tool, including
training on identifying the wage level that should
be used for selection. While there was an
aspirational hope that the H–1B Selection Final
Rule could be implemented in time for the FY 22
selection process, that hope has proven misguided.
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changes to facilitate full compliance
with the new regulatory requirements.
While DHS considered other
alternatives, including a shorter term
delay (such as a delay of 60 days, or a
delay to the start of the next fiscal year,
October 1, 2021), DHS believes that a
longer delay is needed to avoid the
confusion and disparate treatment of
registrants that would result if a new
rule took effect during the initial
registration period, or a subsequent
registration and selection period, for the
FY 2022 numerical allocations,
particularly if USCIS needs to open a
subsequent registration period later this
year to ensure full utilization of the FY
2022 numerical allocations. DHS cannot
predict, with full certainty, the demand
for H–1B visas for FY 2022 given the
current state of the U.S. economy, the
continued COVID–19 public health
emergency, and efforts to address it in
the United States and abroad. Thus,
DHS cannot predict whether it will be
necessary to continue to accept
registrations after the initial registration
period for the FY 2022 numerical
allocations closes, or whether USCIS
will need to reopen the H–1B
registration period later in the 2021
calendar year to generate the number of
H–1B cap petitions projected as needed
to reach the FY 2022 numerical
allocations. Should USCIS need to open
a subsequent registration period and the
H–1B Selection Final Rule is in effect at
that time, that would mean that H–1B
registrations for the same fiscal year
would be selected under two different
standards, thus causing confusion and
disparate treatment among H–1B
registrants for FY 2022. Further, if
USCIS needed to select additional
registrations after the H–1B Selection
Final Rule takes effect, but must
continue to select from among those
submitted before the H–1B Selection
Final Rule takes effect (e.g. submitted
during the initial registration period),
the submitted registrations would not
contain the necessary data to make a
wage level selection as such data would
only be collected after the H–1B
Selection Final Rule, and associated
revisions to data collection, take effect.
The H–1B Selection Final Rule does not
have a mechanism whereby USCIS
could request additional information
from registrants in order to apply a new
regulatory scheme. Furthermore,
applying a new regulation to
registrations submitted under the
current regulations would lead to
disparate treatment of registrants who
submitted registrations during the same
initial registration period and would
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have the potential to disturb their
reliance interests.
After determining that there is not
adequate time for USCIS to complete the
development and thoroughly test the
modifications to the H–1B registration
system, train staff, and conduct outreach
on the H–1B Selection Final Rule, DHS
also considered an alternative to
delaying the H–1B Selection Final Rule,
i.e. having USCIS suspend the
registration process for FY 2022 under
8 CFR 214.2(h)(8)(iv) and apply the new
rule to the petition-based selection
process. However, USCIS determined
that suspending the registration process
would have deleterious impacts on the
FY 2022 selection process, as applying
the new selection methodology to a
petition-based selection process would
be exceedingly difficult and require
even more time to operationalize,
particularly given COVID–19 and the
difficulty the agency would face in
staffing up to pivot to in-person intake,
sorting, and selection process. For
example, last year USCIS experienced
significant difficulty staffing the Service
Centers with contract staff to intake
petitions during the petition filing
season, even considering that the
registration-based selection process
significantly reduced the number of
petitions filed at one time. Initial hiring
of sufficient contractor staff to support
USCIS petition intake was incredibly
difficult and, due to COVID–19, data
entry was significantly delayed. It took
several weeks to complete data entry
and reject petitions that did not meet
the regulatory requirements (e.g. those
filed with incorrect fees), which
eliminated the ability of some
petitioners to refile their petitions
within the assigned filing window
because of this delay. Suspending the
registration process entirely for FY 2022
would mean that, during the first week
of April, USCIS would receive petitions
from all employers seeking cap-subject
H–1B workers (i.e., not only those
whose registrations are selected in
advance) through a paper-based process
(e.g. U.S. mail, commercial courier), and
would require a significant ramping up
in contractor staffing. Arranging timely
contractor staffing typically requires
several months of advanced planning
(e.g. announcing positions, receiving
applications, running background
checks on applicants, onboarding, and
training), and therefore cannot be
achieved in a timely manner if USCIS
were to retain the March 9, 2021
effective date.4
4 As indicated above, until very recently, USCIS
had hoped that it would be able to modify and
thoroughly test the H–1B registration system in time
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Furthermore, because the selection
process would be dependent on wage
level, the scope of work for contractor
staff would require not only initial
review of petitions for completeness and
correct filing fees, but also to identify
the wage levels that would be used to
rank them for purposes of the selection
process. Petitions that do not contain
required wage information would have
to be rejected. Because the scope of
intake work would significantly expand,
the time to complete intake would be
lengthened.
Moreover, reverting to a paper-based
selection process would re-introduce
additional uncertainties into the H–1B
selection process that the electronic
registration process eliminated. For
example, in order to conduct the paperbased selection process, USCIS would
likely have to suspend premium
processing of H–1B petitions which
would further delay the processing of
petitions.
The aforementioned problems are
significantly aggravated by the COVID–
19 pandemic. In particular, to ensure
sufficient physical distancing of staff on
premises, USCIS has already made
plans to evenly distribute the H–1B
petition adjudication workload for FY
2022 between four Service Centers:
California Service Center, Nebraska
Service Center, Texas Service Center,
and Vermont Service Center. If USCIS
were to suspend the electronic
registration process in order to
implement the H–1B Selection Rule to
conduct the FY 2022 selection process,
USCIS would require a significant
amount of time to staff up and train staff
at the Nebraska and Texas Service
Centers because those Service Centers
had never previously conducted
petition-based intake and selection.
Additionally, because USCIS has
already made plans to evenly distribute
the H–1B petition adjudication
workload for FY 2022 between four
Service Centers, current budget and
planning for the California Service
Center and Vermont Service Center does
not provide enough resources required
for those two centers to handle the
entire workload and to quickly pivot to
a petition-based filing system.
Finally, the petition-based process
would require time for the public to
pivot and prepare H–1B petitions,
to implement the H–1B Selection Final Rule on
March 9, 2021. In reliance on that hope, and given
COVID–19 related challenges, as well as ongoing
budget constraints, USCIS has not initiated steps to
staff up for a possible suspension of the FY 2022
registration process, which would be the first in
many steps required to utilize this alternative for
implementing the H–1B Selection Final Rule.
Therefore, this is not a viable option for USCIS.
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including obtain certified Labor
Condition Applications (LCAs) from the
U.S. Department of Labor (DOL) for
submission during the first week of
April. This change could impact DOL
operations because a far larger number
of LCAs than anticipated with the
registration-based system would be filed
in a compressed time period, and DOL
would need to ensure they are
processed in accordance with the
statutory and regulatory processing
timeframe of 7 working days. 20 CFR
655.730(b). This is additional cost for
the public to prepare and submit
petitions when they do not have notice
as to whether they are or will be
selected. For these several reasons,
USCIS determined that reverting to a
paper-based selection process in order
to implement the H–1B Selection Final
Rule during FY 2022 was not a viable
alternative.
Therefore, to ensure USCIS will not
be incapable of administering the H–1B
cap selection process and both avoid
concerns associated with reverting to a
paper-based selection process, as well as
applying two separate regulatory
schemes to the H–1B selection process,
DHS believes that delaying the effective
date of the H–1B Selection Final Rule
until December 31, 2021, will provide
sufficient time to complete the selection
process for the FY 2022 numerical
allocations, thus avoiding unnecessary
confusion and possible inequitable
results as well as more time for USCIS
to modify and test its systems, train
staff, and conduct public outreach.
During the period of the delayed
effective date, while DHS works through
the issues associated with
implementation, DHS leadership will
also evaluate the January 8th rule and
its associated policies, as is typical of
agencies at the beginning of a new
Administration.
Given the longer delay, USCIS expects
that it will select from among all of the
registrations properly submitted toward
the FY 2022 H–1B numerical allocations
based on the current (random selection)
regulations that will be in effect when
USCIS first begins accepting
registrations or petitions toward the FY
2022 numerical allocations.
DHS also believes that December 31,
2021, while most likely to extend
beyond when USCIS has determined
that it has received enough petitions
projected as needed to reach the FY
2022 numerical allocations, also
balances the competing need to ensure
that the regulated public has sufficient
advance notice and certainty as to the
rules that will be in effect for the FY
2023 H–1B numerical allocations.
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III. Statutory and Regulatory
Requirements
A. Administrative Procedure Act
This rule is being issued without prior
notice and opportunity to comment and
with an immediate effective date
pursuant to 5 U.S.C. 553(b)(B) and (d).
The Administrative Procedure Act
(APA), 5 U.S.C. 551 et seq., authorizes
an agency to issue a rule without prior
notice and opportunity to comment
when the agency, for good cause, finds
that those procedures are
‘‘impracticable, unnecessary, or contrary
to the public interest.’’ 5 Similarly, the
APA requires agencies to provide at
least a 30-day delayed effective date for
substantive rules,6 except where the
agency provides good cause to forgo this
requirement. DHS has good cause to
delay the H–1B Selection Final Rule’s
effective date without advance notice
and comment because immediate
implementation would be
impracticable. Implementing the H–1B
Selection Final Rule on March 9, 2021,
would require USCIS to make and test
major H–1B registration system
modifications, revise internal
procedures, train staff, and offer training
to the regulated public, before the
March 2021 start of FY 2022 H–1B cap
filing season. While USCIS initially
assessed that it would have sufficient
time to undertake these changes and
advised the regulated public
accordingly in the H–1B Selection Final
Rule,7 upon further review, USCIS has
determined that it will not have
sufficient time to ensure an orderly and
effective implementation of the changes
to the H–1B registration system in time
for the FY 2022 H–1B cap season,
including time to make and thoroughly
test system modifications, train staff,
and conduct outreach. In addition and
as discussed in detail above, DHS
determined that USCIS suspending the
registration process and instead
applying the H–1B Selection Final Rule
through a paper-based petition selection
process is not a viable alternative
because it would have deleterious
effects on both the regulated public and
the agency.
In addition, DHS recognizes that
commenters responding to the H–1B
Selection Notice of Proposed
Rulemaking requested that DHS delay
implementation of the H–1B Selection
Final Rule because of insufficient time
for them to adapt to a new regulatory
regime. Commenters indicated that
immediate implementation would
55
U.S.C. 553(b)(B).
U.S.C. 553(d).
7 86 FR at 1710.
impose an unreasonable burden on
prospective petitioners and beneficiaries
because changes so close to the
beginning of that cap season would
adversely impact U.S. employers and
would create uncertainty and confusion.
Multiple commenters said companies
already have made hiring decisions
based on the existing registration
system, so delaying implementation
until the FY 2023 cap filing season (set
to begin in March 2022) would give the
regulated community time to adjust.
Some commenters disagreed, stating
that there was sufficient time for DHS,
employers, and others to adjust to the
changes.8
Upon further consideration of these
comments, in addition to concerns that
USCIS lacks adequate time to make and
thoroughly test system modifications,
revise internal procedures, train staff,
and offer training to the regulated
public, and concerns that reverting to a
paper-based selection process also
would have adverse effects on the
regulated public and the agency, DHS
believes that providing the regulated
public with only 60 days (with a current
effective date of March 9, 2021) to adapt
to new regulatory requirements and
modifications of the H–1B registration
system before the FY 2022 H–1B cap
registration season would cause
confusion and very likely would
significantly disrupt the orderly
administration of the H–1B cap. This is
particularly so since, as described
above, USCIS believes it can neither
stand-up, thoroughly test, and therefore
deploy the H–1B registration system
changes and thus would not be able to
conduct outreach on such changes to
the regulated public in advance of
implementation based on the current
March 9, 2021 effective date, nor can it
successfully revert to a paper-based
petition selection process on this
timeline. In addition, DHS believes that
the possibility of having two different
regulatory schemes apply to the same
fiscal year would create significant
confusion for the regulated public that
would not have been reasonably
foreseeable; the same is true for
reverting to a paper-based petition
selection process. Similarly, reverting to
a paper-based petition process in order
to implement the H–1B Selection Final
Rule, with so little lead time to develop
a process for sorting and selecting from
among potentially two hundred
thousand petitions, hiring temporary
contract staff during the national health
emergency to handle intake of the
petitions, and train staff on how to
conduct a new wage-based selection
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process in this context, as well as no
lead time to offer outreach to the
regulated public, would similarly
disrupt the expectations of the regulated
public, and adversely affect the ability
of at least some petitioners to participate
in the selection process for FY 2022.
Therefore, DHS is delaying the effective
date of the H–1B Selection Final Rule to
December 31, 2021.
Current regulations at 8 CFR
214.2(h)(8)(iii)(A)(3) require that the
registration period start at least 14
calendar days before the earliest date on
which H–1B cap-subject petitions may
be filed for a particular fiscal year (i.e.,
April 1, 2021, or shortly thereafter for
FY 2022). Therefore, USCIS must open
the registration period some time in
early- to mid-March. Delaying the
effective date of the H–1B Selection
Final Rule beyond March 9, 2021,
necessarily requires that USCIS apply
the random selection regulations
currently in place to the FY 2022 initial
registration period. As discussed above,
DHS aims to ensure an orderly and
effective administration of the FY 2022
H–1B numerical allocations. Because of
this delay rule, the initial FY 2022
registration period will be administered
under the current regulations. DHS
believes that it is best for the public that
the same legal standard is also applied
to all of the FY 2022 H–1B numerical
allocations. If the H–1B Selection Final
Rule were to take effect during the
initial registration period, or any
subsequent registration period during
FY 2022, USCIS believes it would not be
operationally able to administer the
H–1B numerical allocations under two
different regulatory standards.
Therefore, DHS is delaying the
effective date of the H–1B Selection
Final Rule to December 31, 2021, to
better ensure that the H–1B Selection
Final Rule will not take effect while
USCIS is still administering the FY 2022
numerical allocation selection process.
This delay and the application of the
current regulations to the initial
registration period for the FY 2022
numerical allocations will provide DHS
with more time to modify and test the
changes to the H–1B registration system
that will be needed to implement wagelevel-based selection, and to provide the
regulated public with time to adapt to
new procedures arising from the new
legal requirements and system
modifications.
DHS is aware that some prospective
petitioners and beneficiaries already
may have changed their behavior in
reliance on the H–1B Selection Final
Rule. However, given the short amount
of time that has passed since this rule
was published on January 8, 2021, DHS
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believes that any reliance is minimal
and that such reliance interests do not
outweigh the need for DHS to ensure
that USCIS has sufficient time to
implement the new regulations, and that
the regulated public has enough time to
adjust to the new registration selection
process.
Because it would be impracticable to
provide for notice and comment and a
delayed effective date in advance of the
March 9, 2021, effective date, DHS is
proceeding with this final rule.
Accordingly, the effective date of the H–
1B Selection Final Rule, FR Doc. 2021–
00183, published on January 8, 2021, at
86 FR 1676, is delayed to December 31,
2021.
B. Executive Order 12866, Regulatory
Planning and Review, Executive Order
13563 (Improving Regulation and
Regulatory Review)
Executive Orders (E.O.) 12866 and
13563 direct agencies to assess the costs,
benefits, and transfers of available
alternatives, and if regulation is
necessary, to select regulatory
approaches that maximize net benefits,
including potential economic,
environmental, public health and safety
effects, distributive impacts, and equity.
E.O. 13563 emphasizes the importance
of quantifying both costs and benefits, of
reducing costs, of harmonizing rules,
and of promoting flexibility. Pursuant to
Executive Order 12866 (Regulatory
Planning and Review), the Office of
Information and Regulatory Affairs
(OIRA), of the Office of Management
and Budget (OMB) determined that this
rule is ‘‘economically significant’’ under
E.O. 12866 and has reviewed this
regulation.
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C. Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980
(RFA), 5 U.S.C. 605(b), as amended by
the Small Business Regulatory
Enforcement Fairness Act of 1996,
Public Law 104–121 (March 29, 1996),
requires Federal agencies to consider
the potential impact of regulations on
small entities during the development of
their rules. ‘‘Small entities’’ are small
businesses, not-for-profit organizations
that are not dominant in their fields,
and governmental jurisdictions with
populations of less than 50,000. A
regulatory flexibility analysis is not
required when a rule is exempt from
notice and comment rulemaking. This
final rule is exempt from notice and
comment rulemaking, as stated in the
Administrative Procedure Act, section
of the preamble.
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D. Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act
of 1995 (UMRA) is intended, among
other things, to curb the practice of
imposing unfunded Federal mandates
on State, local, and tribal governments.
Title II of UMRA requires each Federal
agency to prepare a written statement
assessing the effects of any Federal
mandate in a proposed or final agency
rule that may result in a $100 million or
more expenditure (adjusted annually for
inflation) in any one year by State, local,
and tribal governments, in the aggregate,
or by the private sector. The inflationadjusted value equivalent of $100
million in 1995 adjusted for inflation to
2019 levels by the Consumer Price
Index for All Urban Consumers (CPI–U)
is approximately $168 million based on
the Consumer Price Index for All Urban
Consumers.
Because the H–1B Selection Final
Rule that is being delayed by this final
rule may result in the expenditure of
more than $100 million by the private
sector annually, OIRA has determined
that this rule may as well. However,
neither the H–1B Selection Final Rule
nor this rulemaking is a ‘‘Federal
mandate’’ as defined for UMRA
purposes. The cost of preparation of
H–1B petitions (including required
evidence) and the payment of H–1B
nonimmigrant petition fees by
petitioners or other private sector
entities is, to the extent it could be
termed an enforceable duty, one that
arises from participation in a voluntary
Federal program, petitioning for
classification of the beneficiary as an
H–1B nonimmigrant. This final rule
does not contain such a mandate. The
requirements of Title II of UMRA,
therefore, do not apply, and DHS has
not prepared a statement under UMRA.
Therefore, no actions were deemed
necessary under the provisions of the
UMRA.
8547
801(a)(3). However, pursuant to 5 U.S.C.
808(2), DHS is forgoing the 60-day
delayed effective date for the reasons
articulated in the Administrative
Procedure Act section above. This final
rule will take effect immediately upon
publication. DHS has complied with the
CRA’s reporting requirements and has
sent this final rule to Congress and to
the Comptroller General as required by
5 U.S.C. 801(a)(1).
F. Executive Order 13132 (Federalism)
This final rule would not have
substantial direct effects on the states,
on the relationship between the
National Government and the states, or
on the distribution of power and
responsibilities among the various
levels of government. Therefore, in
accordance with section 6 of Executive
Order 13132, DHS has determined that
this final rule does not have sufficient
federalism implications to warrant the
preparation of a federalism summary
impact statement.
G. Executive Order 12988 (Civil Justice
Reform)
This final rule meets the applicable
standards set forth in sections 3(a) and
3(b)(2) of Executive Order 12988.
H. Executive Order 13175 (Consultation
and Coordination With Indian Tribal
Governments)
This final rule does not have ‘‘tribal
implications’’ because it does not have
substantial direct effects on one or more
Indian tribes, on the relationship
between the Federal Government and
Indian tribes, or on the distribution of
power and responsibilities between the
Federal Government and Indian tribes.
Accordingly, E.O. 13175, Consultation
and Coordination with Indian Tribal
Governments, requires no further
agency action or analysis.
E. Congressional Review Act
I. National Environmental Policy Act
(NEPA)
The Office of Information and
Regulatory Affairs determined that the
H–1B Selection final rule was a major
rule as defined by 5 U.S.C. 804, also
known as the ‘‘Congressional Review
Act’’ (CRA), as enacted in section 251 of
the Small Business Regulatory
Enforcement Fairness Act of 1996,
Public Law 104–121, 110 Stat. 847, 868–
874, and codified at 5 U.S.C. 801–808.
Therefore, OIRA has determined that
this rule should have a ‘‘major’’ rule
designation because its practical impact
is that it is delaying the implementation
of a major rule to FY 2023. The CRA
requires that major rules have a 60-day
delayed effective date. 5 U.S.C.
DHS analyzes actions to determine
whether the National Environmental
Policy Act, Public Law 91–190, 42
U.S.C. 4321 through 4347 (NEPA),
applies to them and, if so, what degree
of analysis is required. DHS Directive
023–01 Rev. 01 (Directive) and
Instruction Manual 023–01–001–01 Rev.
01, Implementation of the National
Environmental Policy Act (Instruction
Manual) establish the policies and
procedures that DHS and its
components use to comply with NEPA
and the Council on Environmental
Quality (CEQ) regulations for
implementing NEPA, 40 CFR parts
1500–1508.
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8548
Federal Register / Vol. 86, No. 24 / Monday, February 8, 2021 / Rules and Regulations
The CEQ regulations allow federal
agencies to establish, with CEQ review
and concurrence, categories of actions
(‘‘categorical exclusions’’) that
experience has shown do not
individually or cumulatively have a
significant effect on the human
environment and, therefore, do not
require an Environmental Assessment
(EA) or Environmental Impact
Statement (EIS).9 Categorical exclusions
established by DHS are set forth in
Appendix A of the Instruction Manual.
Under DHS NEPA implementing
procedures, for an action to be
categorically excluded, it must satisfy
each of the following three conditions:
(1) The entire action clearly fits within
one or more of the categorical
exclusions; (2) the action is not a piece
of a larger action; and (3) no
extraordinary circumstances exist that
create the potential for a significant
environmental effect.10
As discussed in more detail
throughout this final rule, DHS is
issuing this final rule to delay the
effective date and postpone the
implementation of the H–1B Selection
Final Rule. That rule is amending
regulations governing the selection of
registrations or petitions, as applicable,
toward the annual H–1B numerical
allocations based on the wage level that
equals or exceeds the proffered wage
based on occupational classification and
area of intended employment.
Generally, DHS believes NEPA does
not apply to a rule intended to change
a discrete aspect of a visa program
because any attempt to analyze its
potential impacts would be largely, if
not completely, speculative. The same
applies to a rule delaying the effective
date of such a rule that does not change
the rule’s substance, but only postpones
its effective date, and consequently
pushes out the date on which it will be
implemented. This final rule does not
alter the statutory limitations on the
numbers of nonimmigrants who may be
issued initial H–1B visas or granted
initial H–1B nonimmigrant status, or
those who consequently will be
admitted into the United States as H–1B
nonimmigrants, or those who will be
allowed to change their status to H–1B,
or will extend their stay in H–1B status.
DHS does not believe, and cannot
reasonably estimate whether, the delay
in a rule that establishes a wage-levelbased ranking approach to select H–1B
registrations (or petitions in any year in
which the registration requirement were
suspended) that DHS is implementing
will affect how many petitions will be
9 See
40 CFR 1507.3(b)(2)(ii), 1508.4.
Manual section V.B(2)(a)–(c).
10 Instruction
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15:53 Feb 05, 2021
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filed for workers to be employed in
specialty occupations or whether the
regulatory amendments herein will
result in an overall change in the
number of H–1B petitions that
ultimately will be approved, and the
number of H–1B workers who will be
employed in the United States in any
FY. DHS has no reason to believe that
delaying these amendments to H–1B
regulations will change the
environmental effect, if any, of the
existing regulations. Therefore, DHS has
determined that, even if NEPA applied
to this action, this final rule clearly fits
within categorical exclusion A3(d) in
the Instruction Manual, which provides
an exclusion for ‘‘promulgation of rules
. . . that amend an existing regulation
without changing its environmental
effect.’’ This final rule only delays
another final rule and will maintain the
current human environment. This final
rule is not a part of a larger action and
presents no extraordinary circumstances
creating the potential for significant
environmental effects. Therefore, this
action is categorically excluded and no
further NEPA analysis is required.
IV. Paperwork Reduction Act
DHS is delaying the implementation
of all changes to the H–1B Registration
Tool (OMB Control number 1615–0144)
and Form I–129, Petition for a
Nonimmigrant Worker (Form I–129)
(OMB Control number 1615–0009),
associated with the H–1B Selection
Final Rule until December 31, 2021.
Alejandro N. Mayorkas,
Secretary, U.S. Department of Homeland
Security.
[FR Doc. 2021–02665 Filed 2–4–21; 4:15 pm]
BILLING CODE 9111–97–P
DEPARTMENT OF ENERGY
10 CFR Part 430
[Case Number 2020–020; EERE–2020–BT–
WAV–0035]
Energy Conservation Program:
Notification of Petition for Waiver of
Ningbo FOTILE Kitchen Ware Co. Ltd.
From the Department of Energy
Dishwashers Test Procedure and
Notification of Grant of Interim Waiver
Office of Energy Efficiency and
Renewable Energy, Department of
Energy.
ACTION: Notification of petition for
waiver and grant of an interim waiver;
request for comments.
AGENCY:
This notification announces
receipt of and publishes a petition for
SUMMARY:
PO 00000
Frm 00006
Fmt 4700
Sfmt 4700
waiver and interim waiver from Ningbo
FOTILE Kitchen Ware Co. Ltd.
(‘‘FOTILE’’), which seeks a waiver for
specified dishwasher basic models from
the U.S. Department of Energy (‘‘DOE’’)
test procedure used for determining the
energy and water consumption of
dishwashers. DOE also gives
notification of an Interim Waiver Order
that requires FOTILE to test and rate the
specified dishwasher basic models in
accordance with the alternate test
procedure set forth in the Interim
Waiver Order. DOE solicits comments,
data, and information concerning
FOTILE’s petition and its suggested
alternate test procedure so as to inform
DOE’s final decision on FOTILE’s
waiver request.
DATES: The Interim Waiver Order is
effective on February 8, 2021. Written
comments and information are
requested and will be accepted on or
before March 10, 2021.
ADDRESSES: Interested persons are
encouraged to submit comments using
the Federal eRulemaking Portal at
https://www.regulations.gov.
Alternatively, interested persons may
submit comments, identified by case
number ‘‘2020–020’’, and Docket
number ‘‘EERE–2020–BT–WAV–0035,’’
by any of the following methods:
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
• Email:
FotileDishwasher2020WAV0035@
ee.doe.gov. Include Case No. 2020–020
in the subject line of the message.
• Postal Mail: Appliance and
Equipment Standards Program, U.S.
Department of Energy, Office of Energy
Efficiency and Renewable Energy,
Building Technologies Office, Mailstop
EE–5B, Petition for Waiver Case No.
2020–020, 1000 Independence Avenue
SW, Washington, DC 20585–0121. If
possible, please submit all items on a
compact disc (‘‘CD’’), in which case it is
not necessary to include printed copies.
• Hand Delivery/Courier: Appliance
and Equipment Standards Program, U.S.
Department of Energy, Building
Technologies Office, 950 L’Enfant Plaza
SW, 6th Floor, Washington, DC 20024.
Telephone: (202) 287–1445. If possible,
please submit all items on a CD, in
which case it is not necessary to include
printed copies.
No telefacsimilies (‘‘faxes’’) will be
accepted. For detailed instructions on
submitting comments and additional
information on this process, see the
SUPPLEMENTARY INFORMATION section of
this document.
Docket: The docket, which includes
Federal Register notices, comments,
E:\FR\FM\08FER1.SGM
08FER1
Agencies
[Federal Register Volume 86, Number 24 (Monday, February 8, 2021)]
[Rules and Regulations]
[Pages 8543-8548]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-02665]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
========================================================================
Federal Register / Vol. 86, No. 24 / Monday, February 8, 2021 / Rules
and Regulations
[[Page 8543]]
DEPARTMENT OF HOMELAND SECURITY
8 CFR Part 214
[CIS No. 2680-21; Docket No: USCIS 2020-0019]
RIN 1615-AC61
Modification of Registration Requirement for Petitioners Seeking
To File Cap-Subject H-1B Petitions; Delay of Effective Date
AGENCY: U.S. Citizenship and Immigration Services (USCIS), U.S.
Department of Homeland Security (DHS).
ACTION: Final rule; delay of effective date; request for comments.
-----------------------------------------------------------------------
SUMMARY: On January 8, 2021, DHS published a final rule, Modification
of Registration Requirement for Petitioners Seeking To File Cap-Subject
H-1B Petitions (H-1B Selection Final Rule) amending regulations
governing the process by which U.S. Citizenship and Immigration
Services (USCIS) selects H-1B registrations for the filing of H-1B cap-
subject petitions (or H-1B petitions for any year in which the
registration requirement is suspended), by generally first selecting
registrations based on the highest Occupational Employment Statistics
(OES) prevailing wage level that the proffered wage equals or exceeds
for the relevant Standard Occupational Classification (SOC) code and
area(s) of intended employment. The Department is delaying the rule's
effective date until December 31, 2021, because USCIS will not have
adequate time to complete system development, thoroughly test the
modifications, train staff, and conduct public outreach needed to
ensure an effective and orderly implementation of the H-1B Selection
Final Rule by the time the initial registration period will be open for
the upcoming fiscal year (FY) 2022 H-1B cap season. During the delay,
while USCIS works through the issues associated with implementation,
DHS leadership will also evaluate the January 8th rule and its
associated policies, as is typical of agencies at the beginning of a
new Administration.
DATES: As of February 8, 2021, the effective date of the final rule
published January 8, 2021, at 86 FR 1676, is delayed to December 31,
2021. DHS is accepting public comments on this delay until March 10,
2021.
ADDRESSES: You may submit comments on the entirety of this final rule
package, identified by DHS Docket No. USCIS-2020-0019, through the
Federal eRulemaking Portal: https://www.regulations.gov. Follow the
website instructions for submitting comments. Comments submitted in a
manner other than the one listed above, including emails or letters
sent to DHS or USCIS officials, will not be considered comments on this
final rule and may not receive a response from DHS. Please note that
DHS and USCIS cannot accept any comments that are hand-delivered or
couriered. In addition, USCIS cannot accept comments contained on any
form of digital media storage devices, such as CDs/DVDs and USB drives.
Due to COVID-19, USCIS is also not accepting mailed comments at this
time. If you cannot submit your comment by using https://www.regulations.gov, please contact Samantha Deshommes, Chief,
Regulatory Coordination Division, Office of Policy and Strategy, U.S.
Citizenship and Immigration Services, Department of Homeland Security,
by telephone at 240-721-3000 for alternate instructions.
FOR FURTHER INFORMATION CONTACT: Charles L. Nimick, Chief, Business and
Foreign Workers Division, U.S. Citizenship and Immigration Services,
5900 Capital Gateway Drive, Camp Springs, MD 20746; telephone 240-721-
3000 (this is not a toll-free number). Individuals with hearing or
speech impairments may access the telephone number above via TTY by
calling the toll-free Federal Information Relay Service at 1-877-889-
5627 (TTY-TDD).
SUPPLEMENTARY INFORMATION:
I. Public Participation
DHS invites all interested parties to participate in this
rulemaking by submitting written data, views, comments, and arguments
on all aspects of this final rule. DHS also invites comments that
relate to the economic, environmental, or federalism effects that might
result from this final rule. Comments must be submitted in English, or
an English translation must be provided. Comments that will provide the
most assistance to DHS in implementing these changes will: reference a
specific portion of the final rule; explain the reason for any
recommended change; and include data, information, or authority that
supports such a recommended change. Comments submitted in a manner
other than those listed in the ADDRESSES section, including emails or
letters sent to DHS or USCIS officials, will not be considered comments
on the final rule. Please note that DHS and USCIS cannot accept any
comments that are hand-delivered or couriered. In addition, USCIS
cannot accept mailed comments contained on any form of digital media
storage devices, such as CDs/DVDs and USB drives.
Instructions: If you submit a comment, you must include the agency
name (U.S. Citizenship and Immigration Services) and the DHS Docket No.
USCIS-2020-0019 for this rulemaking. Regardless of the method used for
submitting comments or material, all submissions will be posted,
without change, to the Federal eRulemaking Portal at https://www.regulations.gov, and will include any personal information you
provide. Therefore, submitting this information makes it public. You
may wish to consider limiting the amount of personal information that
you provide in any voluntary public comment submission you make to DHS.
DHS may withhold information provided in comments from public viewing
that it determines may impact the privacy of an individual or is
offensive. For additional information, please read the Privacy and
Security Notice available at https://www.regulations.gov.
Docket: For access to the docket and to read background documents
or comments received, go to https://www.regulations.gov, referencing DHS
Docket No. USCIS-2020-0019. You may also sign up for email alerts on
the online docket to be notified when comments are posted or a final
rule is published.
[[Page 8544]]
II. Background
On January 8, 2021, DHS published the H-1B Selection Final Rule,
Modification of Registration Requirement for Petitioners Seeking To
File Cap-Subject H-1B Petitions, amending regulations governing the
process by which USCIS selects H-1B registrations for the filing of H-
1B cap-subject petitions (or H-1B petitions for any year in which the
registration requirement is suspended). Under the rule, USCIS would
generally select H-1B registrations based on proffered wages and
corresponding prevailing wage levels. Specifically, USCIS would first
select registrations with proffered wages that meet or exceed the
highest OES prevailing wage level for the relevant SOC code and area(s)
of intended employment.\1\
---------------------------------------------------------------------------
\1\ 86 FR 1676. The H-1B Selection Final Rule was approved by
Chad F. Wolf in his capacity as Acting Secretary of Homeland
Security. DHS is aware that multiple courts have indicated or held
that Mr. Wolf did not have valid authority to act, and, therefore,
did not have authority to sign rules in that capacity. DHS also is
aware that, following issuance of the rule, Peter T. Gaynor and Mr.
Wolf took steps to ratify the H-1B Selection Final Rule. See DHS
Delegation No. 23028, Delegation to the Under Secretary for
Strategy, Policy, and Plans to Act on Final Rules, Regulations, and
Other Matters (Jan. 12, 2021); Chad F. Wolf, Ratification (Jan. 14,
2021). By issuing this rule, DHS states no position on Mr. Gaynor's
or Mr. Wolf's actions or authority.
---------------------------------------------------------------------------
The H-1B Selection Final Rule is currently scheduled to go into
effect on March 9, 2021. As discussed in greater detail below, after
further consideration, USCIS has determined that the final rule's 60-
day effective date does not afford USCIS sufficient time between the
publication of the rule on January 8, 2021, and March 9, 2021, to
complete the development and thoroughly test the modifications needed
in the H-1B registration system to sufficiently minimize technical
risks that result from a compressed testing schedule, as well as to
amend policies and train staff to ensure the effective and orderly
administration of the cap under the H-1B Selection Final Rule. By this
action, DHS is delaying the H-1B Selection Final Rule until December
31, 2021, and is applying the regulations currently in place (random
selection) to the initial registration period, and, most likely, any
subsequent registration period for the FY 2022 registration process.
DHS expects that delaying the rule to December 31, 2021, will
provide USCIS sufficient time to develop, thoroughly test, and
implement the modifications to the registration system and selection
process and give stakeholders sufficient time to adjust to new
procedures arising from the new rule. The publication of the final rule
on January 8, 2021, finalized a new selection process requiring, from a
technical standpoint, that a new algorithm be developed, thoroughly
tested, and implemented in the form of an electronic registration tool.
The publication date of the final rule only affords six weeks of
development time, and less than two weeks to complete internal end-to-
end testing and external performance testing with DHS OneNet, the DHS
network. The selection logic is a fundamental part of the registration
tool, and the H-1B Selection Final Rule created more complexity in the
logic calculation by adding several versions of lotteries that must be
developed, thoroughly tested and implemented. This additional
complexity essentially requires a complete rebuilding of the
registration tool that was developed for the FY 2021 selection
process.\2\ In light of these technical challenges, DHS now believes
that there is not adequate time to develop and thoroughly test the new
H-1B registration system, conduct training and provide outreach on such
changes to the regulated public prior to the start of the FY22 initial
registration period.\3\
---------------------------------------------------------------------------
\2\ Development of the new system has been ongoing since
publication of the final rule, however current estimates indicate
that development work will not be complete before February 19, 2021.
Testing of the system may commence upon completion of system
development, which only leaves one to two weeks (depending on when
the initial registration period opens), in a best case scenario, to
test the system, identify any bugs, conduct additional development
to resolve identified bugs, complete additional testing to ensure
proper functionality, conduct internal training, and provide
outreach to the public.
\3\ The Registration Requirement for Petitioners Seeking to File
H-1B Petitions on Behalf of Cap-Subject Aliens Final Rule, 84 FR 888
(Jan. 31, 2019), made clear that implementation of the registration
tool requires significant development, testing and stakeholder
outreach that cannot reasonably happen in a few weeks. As a result,
DHS delayed implementation of the initial registration process for a
full year to develop, test, and conduct stakeholder outreach. The H-
1B Selection Final Rule would also benefit from a similar delay to
develop, thoroughly test, and conduct stakeholder training on the
modified registration tool, including training on identifying the
wage level that should be used for selection. While there was an
aspirational hope that the H-1B Selection Final Rule could be
implemented in time for the FY 22 selection process, that hope has
proven misguided.
---------------------------------------------------------------------------
As indicated below, DHS wants to ensure the orderly and efficient
administration of the H-1B numerical allocations and wants to avoid
disruption to the regulated public by affording itself sufficient time
to fully modify and thoroughly test the changes to the H-1B
registration system, minimize technical risks that result from a
compressed testing schedule, and provide the regulated public enough
time to become familiar with those changes to facilitate full
compliance with the new regulatory requirements.
While DHS considered other alternatives, including a shorter term
delay (such as a delay of 60 days, or a delay to the start of the next
fiscal year, October 1, 2021), DHS believes that a longer delay is
needed to avoid the confusion and disparate treatment of registrants
that would result if a new rule took effect during the initial
registration period, or a subsequent registration and selection period,
for the FY 2022 numerical allocations, particularly if USCIS needs to
open a subsequent registration period later this year to ensure full
utilization of the FY 2022 numerical allocations. DHS cannot predict,
with full certainty, the demand for H-1B visas for FY 2022 given the
current state of the U.S. economy, the continued COVID-19 public health
emergency, and efforts to address it in the United States and abroad.
Thus, DHS cannot predict whether it will be necessary to continue to
accept registrations after the initial registration period for the FY
2022 numerical allocations closes, or whether USCIS will need to reopen
the H-1B registration period later in the 2021 calendar year to
generate the number of H-1B cap petitions projected as needed to reach
the FY 2022 numerical allocations. Should USCIS need to open a
subsequent registration period and the H-1B Selection Final Rule is in
effect at that time, that would mean that H-1B registrations for the
same fiscal year would be selected under two different standards, thus
causing confusion and disparate treatment among H-1B registrants for FY
2022. Further, if USCIS needed to select additional registrations after
the H-1B Selection Final Rule takes effect, but must continue to select
from among those submitted before the H-1B Selection Final Rule takes
effect (e.g. submitted during the initial registration period), the
submitted registrations would not contain the necessary data to make a
wage level selection as such data would only be collected after the H-
1B Selection Final Rule, and associated revisions to data collection,
take effect. The H-1B Selection Final Rule does not have a mechanism
whereby USCIS could request additional information from registrants in
order to apply a new regulatory scheme. Furthermore, applying a new
regulation to registrations submitted under the current regulations
would lead to disparate treatment of registrants who submitted
registrations during the same initial registration period and would
[[Page 8545]]
have the potential to disturb their reliance interests.
After determining that there is not adequate time for USCIS to
complete the development and thoroughly test the modifications to the
H-1B registration system, train staff, and conduct outreach on the H-1B
Selection Final Rule, DHS also considered an alternative to delaying
the H-1B Selection Final Rule, i.e. having USCIS suspend the
registration process for FY 2022 under 8 CFR 214.2(h)(8)(iv) and apply
the new rule to the petition-based selection process. However, USCIS
determined that suspending the registration process would have
deleterious impacts on the FY 2022 selection process, as applying the
new selection methodology to a petition-based selection process would
be exceedingly difficult and require even more time to operationalize,
particularly given COVID-19 and the difficulty the agency would face in
staffing up to pivot to in-person intake, sorting, and selection
process. For example, last year USCIS experienced significant
difficulty staffing the Service Centers with contract staff to intake
petitions during the petition filing season, even considering that the
registration-based selection process significantly reduced the number
of petitions filed at one time. Initial hiring of sufficient contractor
staff to support USCIS petition intake was incredibly difficult and,
due to COVID-19, data entry was significantly delayed. It took several
weeks to complete data entry and reject petitions that did not meet the
regulatory requirements (e.g. those filed with incorrect fees), which
eliminated the ability of some petitioners to refile their petitions
within the assigned filing window because of this delay. Suspending the
registration process entirely for FY 2022 would mean that, during the
first week of April, USCIS would receive petitions from all employers
seeking cap-subject H-1B workers (i.e., not only those whose
registrations are selected in advance) through a paper-based process
(e.g. U.S. mail, commercial courier), and would require a significant
ramping up in contractor staffing. Arranging timely contractor staffing
typically requires several months of advanced planning (e.g. announcing
positions, receiving applications, running background checks on
applicants, onboarding, and training), and therefore cannot be achieved
in a timely manner if USCIS were to retain the March 9, 2021 effective
date.\4\
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\4\ As indicated above, until very recently, USCIS had hoped
that it would be able to modify and thoroughly test the H-1B
registration system in time to implement the H-1B Selection Final
Rule on March 9, 2021. In reliance on that hope, and given COVID-19
related challenges, as well as ongoing budget constraints, USCIS has
not initiated steps to staff up for a possible suspension of the FY
2022 registration process, which would be the first in many steps
required to utilize this alternative for implementing the H-1B
Selection Final Rule. Therefore, this is not a viable option for
USCIS.
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Furthermore, because the selection process would be dependent on
wage level, the scope of work for contractor staff would require not
only initial review of petitions for completeness and correct filing
fees, but also to identify the wage levels that would be used to rank
them for purposes of the selection process. Petitions that do not
contain required wage information would have to be rejected. Because
the scope of intake work would significantly expand, the time to
complete intake would be lengthened.
Moreover, reverting to a paper-based selection process would re-
introduce additional uncertainties into the H-1B selection process that
the electronic registration process eliminated. For example, in order
to conduct the paper-based selection process, USCIS would likely have
to suspend premium processing of H-1B petitions which would further
delay the processing of petitions.
The aforementioned problems are significantly aggravated by the
COVID-19 pandemic. In particular, to ensure sufficient physical
distancing of staff on premises, USCIS has already made plans to evenly
distribute the H-1B petition adjudication workload for FY 2022 between
four Service Centers: California Service Center, Nebraska Service
Center, Texas Service Center, and Vermont Service Center. If USCIS were
to suspend the electronic registration process in order to implement
the H-1B Selection Rule to conduct the FY 2022 selection process, USCIS
would require a significant amount of time to staff up and train staff
at the Nebraska and Texas Service Centers because those Service Centers
had never previously conducted petition-based intake and selection.
Additionally, because USCIS has already made plans to evenly distribute
the H-1B petition adjudication workload for FY 2022 between four
Service Centers, current budget and planning for the California Service
Center and Vermont Service Center does not provide enough resources
required for those two centers to handle the entire workload and to
quickly pivot to a petition-based filing system.
Finally, the petition-based process would require time for the
public to pivot and prepare H-1B petitions, including obtain certified
Labor Condition Applications (LCAs) from the U.S. Department of Labor
(DOL) for submission during the first week of April. This change could
impact DOL operations because a far larger number of LCAs than
anticipated with the registration-based system would be filed in a
compressed time period, and DOL would need to ensure they are processed
in accordance with the statutory and regulatory processing timeframe of
7 working days. 20 CFR 655.730(b). This is additional cost for the
public to prepare and submit petitions when they do not have notice as
to whether they are or will be selected. For these several reasons,
USCIS determined that reverting to a paper-based selection process in
order to implement the H-1B Selection Final Rule during FY 2022 was not
a viable alternative.
Therefore, to ensure USCIS will not be incapable of administering
the H-1B cap selection process and both avoid concerns associated with
reverting to a paper-based selection process, as well as applying two
separate regulatory schemes to the H-1B selection process, DHS believes
that delaying the effective date of the H-1B Selection Final Rule until
December 31, 2021, will provide sufficient time to complete the
selection process for the FY 2022 numerical allocations, thus avoiding
unnecessary confusion and possible inequitable results as well as more
time for USCIS to modify and test its systems, train staff, and conduct
public outreach. During the period of the delayed effective date, while
DHS works through the issues associated with implementation, DHS
leadership will also evaluate the January 8th rule and its associated
policies, as is typical of agencies at the beginning of a new
Administration.
Given the longer delay, USCIS expects that it will select from
among all of the registrations properly submitted toward the FY 2022 H-
1B numerical allocations based on the current (random selection)
regulations that will be in effect when USCIS first begins accepting
registrations or petitions toward the FY 2022 numerical allocations.
DHS also believes that December 31, 2021, while most likely to
extend beyond when USCIS has determined that it has received enough
petitions projected as needed to reach the FY 2022 numerical
allocations, also balances the competing need to ensure that the
regulated public has sufficient advance notice and certainty as to the
rules that will be in effect for the FY 2023 H-1B numerical
allocations.
[[Page 8546]]
III. Statutory and Regulatory Requirements
A. Administrative Procedure Act
This rule is being issued without prior notice and opportunity to
comment and with an immediate effective date pursuant to 5 U.S.C.
553(b)(B) and (d). The Administrative Procedure Act (APA), 5 U.S.C. 551
et seq., authorizes an agency to issue a rule without prior notice and
opportunity to comment when the agency, for good cause, finds that
those procedures are ``impracticable, unnecessary, or contrary to the
public interest.'' \5\ Similarly, the APA requires agencies to provide
at least a 30-day delayed effective date for substantive rules,\6\
except where the agency provides good cause to forgo this requirement.
DHS has good cause to delay the H-1B Selection Final Rule's effective
date without advance notice and comment because immediate
implementation would be impracticable. Implementing the H-1B Selection
Final Rule on March 9, 2021, would require USCIS to make and test major
H-1B registration system modifications, revise internal procedures,
train staff, and offer training to the regulated public, before the
March 2021 start of FY 2022 H-1B cap filing season. While USCIS
initially assessed that it would have sufficient time to undertake
these changes and advised the regulated public accordingly in the H-1B
Selection Final Rule,\7\ upon further review, USCIS has determined that
it will not have sufficient time to ensure an orderly and effective
implementation of the changes to the H-1B registration system in time
for the FY 2022 H-1B cap season, including time to make and thoroughly
test system modifications, train staff, and conduct outreach. In
addition and as discussed in detail above, DHS determined that USCIS
suspending the registration process and instead applying the H-1B
Selection Final Rule through a paper-based petition selection process
is not a viable alternative because it would have deleterious effects
on both the regulated public and the agency.
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\5\ 5 U.S.C. 553(b)(B).
\6\ 5 U.S.C. 553(d).
\7\ 86 FR at 1710.
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In addition, DHS recognizes that commenters responding to the H-1B
Selection Notice of Proposed Rulemaking requested that DHS delay
implementation of the H-1B Selection Final Rule because of insufficient
time for them to adapt to a new regulatory regime. Commenters indicated
that immediate implementation would impose an unreasonable burden on
prospective petitioners and beneficiaries because changes so close to
the beginning of that cap season would adversely impact U.S. employers
and would create uncertainty and confusion. Multiple commenters said
companies already have made hiring decisions based on the existing
registration system, so delaying implementation until the FY 2023 cap
filing season (set to begin in March 2022) would give the regulated
community time to adjust. Some commenters disagreed, stating that there
was sufficient time for DHS, employers, and others to adjust to the
changes.\8\
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\8\ 86 FR at 1710.
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Upon further consideration of these comments, in addition to
concerns that USCIS lacks adequate time to make and thoroughly test
system modifications, revise internal procedures, train staff, and
offer training to the regulated public, and concerns that reverting to
a paper-based selection process also would have adverse effects on the
regulated public and the agency, DHS believes that providing the
regulated public with only 60 days (with a current effective date of
March 9, 2021) to adapt to new regulatory requirements and
modifications of the H-1B registration system before the FY 2022 H-1B
cap registration season would cause confusion and very likely would
significantly disrupt the orderly administration of the H-1B cap. This
is particularly so since, as described above, USCIS believes it can
neither stand-up, thoroughly test, and therefore deploy the H-1B
registration system changes and thus would not be able to conduct
outreach on such changes to the regulated public in advance of
implementation based on the current March 9, 2021 effective date, nor
can it successfully revert to a paper-based petition selection process
on this timeline. In addition, DHS believes that the possibility of
having two different regulatory schemes apply to the same fiscal year
would create significant confusion for the regulated public that would
not have been reasonably foreseeable; the same is true for reverting to
a paper-based petition selection process. Similarly, reverting to a
paper-based petition process in order to implement the H-1B Selection
Final Rule, with so little lead time to develop a process for sorting
and selecting from among potentially two hundred thousand petitions,
hiring temporary contract staff during the national health emergency to
handle intake of the petitions, and train staff on how to conduct a new
wage-based selection process in this context, as well as no lead time
to offer outreach to the regulated public, would similarly disrupt the
expectations of the regulated public, and adversely affect the ability
of at least some petitioners to participate in the selection process
for FY 2022. Therefore, DHS is delaying the effective date of the H-1B
Selection Final Rule to December 31, 2021.
Current regulations at 8 CFR 214.2(h)(8)(iii)(A)(3) require that
the registration period start at least 14 calendar days before the
earliest date on which H-1B cap-subject petitions may be filed for a
particular fiscal year (i.e., April 1, 2021, or shortly thereafter for
FY 2022). Therefore, USCIS must open the registration period some time
in early- to mid-March. Delaying the effective date of the H-1B
Selection Final Rule beyond March 9, 2021, necessarily requires that
USCIS apply the random selection regulations currently in place to the
FY 2022 initial registration period. As discussed above, DHS aims to
ensure an orderly and effective administration of the FY 2022 H-1B
numerical allocations. Because of this delay rule, the initial FY 2022
registration period will be administered under the current regulations.
DHS believes that it is best for the public that the same legal
standard is also applied to all of the FY 2022 H-1B numerical
allocations. If the H-1B Selection Final Rule were to take effect
during the initial registration period, or any subsequent registration
period during FY 2022, USCIS believes it would not be operationally
able to administer the H-1B numerical allocations under two different
regulatory standards.
Therefore, DHS is delaying the effective date of the H-1B Selection
Final Rule to December 31, 2021, to better ensure that the H-1B
Selection Final Rule will not take effect while USCIS is still
administering the FY 2022 numerical allocation selection process. This
delay and the application of the current regulations to the initial
registration period for the FY 2022 numerical allocations will provide
DHS with more time to modify and test the changes to the H-1B
registration system that will be needed to implement wage-level-based
selection, and to provide the regulated public with time to adapt to
new procedures arising from the new legal requirements and system
modifications.
DHS is aware that some prospective petitioners and beneficiaries
already may have changed their behavior in reliance on the H-1B
Selection Final Rule. However, given the short amount of time that has
passed since this rule was published on January 8, 2021, DHS
[[Page 8547]]
believes that any reliance is minimal and that such reliance interests
do not outweigh the need for DHS to ensure that USCIS has sufficient
time to implement the new regulations, and that the regulated public
has enough time to adjust to the new registration selection process.
Because it would be impracticable to provide for notice and comment
and a delayed effective date in advance of the March 9, 2021, effective
date, DHS is proceeding with this final rule. Accordingly, the
effective date of the H-1B Selection Final Rule, FR Doc. 2021-00183,
published on January 8, 2021, at 86 FR 1676, is delayed to December 31,
2021.
B. Executive Order 12866, Regulatory Planning and Review, Executive
Order 13563 (Improving Regulation and Regulatory Review)
Executive Orders (E.O.) 12866 and 13563 direct agencies to assess
the costs, benefits, and transfers of available alternatives, and if
regulation is necessary, to select regulatory approaches that maximize
net benefits, including potential economic, environmental, public
health and safety effects, distributive impacts, and equity. E.O. 13563
emphasizes the importance of quantifying both costs and benefits, of
reducing costs, of harmonizing rules, and of promoting flexibility.
Pursuant to Executive Order 12866 (Regulatory Planning and Review), the
Office of Information and Regulatory Affairs (OIRA), of the Office of
Management and Budget (OMB) determined that this rule is ``economically
significant'' under E.O. 12866 and has reviewed this regulation.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 605(b), as
amended by the Small Business Regulatory Enforcement Fairness Act of
1996, Public Law 104-121 (March 29, 1996), requires Federal agencies to
consider the potential impact of regulations on small entities during
the development of their rules. ``Small entities'' are small
businesses, not-for-profit organizations that are not dominant in their
fields, and governmental jurisdictions with populations of less than
50,000. A regulatory flexibility analysis is not required when a rule
is exempt from notice and comment rulemaking. This final rule is exempt
from notice and comment rulemaking, as stated in the Administrative
Procedure Act, section of the preamble.
D. Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 (UMRA) is intended, among
other things, to curb the practice of imposing unfunded Federal
mandates on State, local, and tribal governments. Title II of UMRA
requires each Federal agency to prepare a written statement assessing
the effects of any Federal mandate in a proposed or final agency rule
that may result in a $100 million or more expenditure (adjusted
annually for inflation) in any one year by State, local, and tribal
governments, in the aggregate, or by the private sector. The inflation-
adjusted value equivalent of $100 million in 1995 adjusted for
inflation to 2019 levels by the Consumer Price Index for All Urban
Consumers (CPI-U) is approximately $168 million based on the Consumer
Price Index for All Urban Consumers.
Because the H-1B Selection Final Rule that is being delayed by this
final rule may result in the expenditure of more than $100 million by
the private sector annually, OIRA has determined that this rule may as
well. However, neither the H-1B Selection Final Rule nor this
rulemaking is a ``Federal mandate'' as defined for UMRA purposes. The
cost of preparation of H-1B petitions (including required evidence) and
the payment of H-1B nonimmigrant petition fees by petitioners or other
private sector entities is, to the extent it could be termed an
enforceable duty, one that arises from participation in a voluntary
Federal program, petitioning for classification of the beneficiary as
an H-1B nonimmigrant. This final rule does not contain such a mandate.
The requirements of Title II of UMRA, therefore, do not apply, and DHS
has not prepared a statement under UMRA. Therefore, no actions were
deemed necessary under the provisions of the UMRA.
E. Congressional Review Act
The Office of Information and Regulatory Affairs determined that
the H-1B Selection final rule was a major rule as defined by 5 U.S.C.
804, also known as the ``Congressional Review Act'' (CRA), as enacted
in section 251 of the Small Business Regulatory Enforcement Fairness
Act of 1996, Public Law 104-121, 110 Stat. 847, 868-874, and codified
at 5 U.S.C. 801-808. Therefore, OIRA has determined that this rule
should have a ``major'' rule designation because its practical impact
is that it is delaying the implementation of a major rule to FY 2023.
The CRA requires that major rules have a 60-day delayed effective date.
5 U.S.C. 801(a)(3). However, pursuant to 5 U.S.C. 808(2), DHS is
forgoing the 60-day delayed effective date for the reasons articulated
in the Administrative Procedure Act section above. This final rule will
take effect immediately upon publication. DHS has complied with the
CRA's reporting requirements and has sent this final rule to Congress
and to the Comptroller General as required by 5 U.S.C. 801(a)(1).
F. Executive Order 13132 (Federalism)
This final rule would not have substantial direct effects on the
states, on the relationship between the National Government and the
states, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with section 6
of Executive Order 13132, DHS has determined that this final rule does
not have sufficient federalism implications to warrant the preparation
of a federalism summary impact statement.
G. Executive Order 12988 (Civil Justice Reform)
This final rule meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of Executive Order 12988.
H. Executive Order 13175 (Consultation and Coordination With Indian
Tribal Governments)
This final rule does not have ``tribal implications'' because it
does not have substantial direct effects on one or more Indian tribes,
on the relationship between the Federal Government and Indian tribes,
or on the distribution of power and responsibilities between the
Federal Government and Indian tribes. Accordingly, E.O. 13175,
Consultation and Coordination with Indian Tribal Governments, requires
no further agency action or analysis.
I. National Environmental Policy Act (NEPA)
DHS analyzes actions to determine whether the National
Environmental Policy Act, Public Law 91-190, 42 U.S.C. 4321 through
4347 (NEPA), applies to them and, if so, what degree of analysis is
required. DHS Directive 023-01 Rev. 01 (Directive) and Instruction
Manual 023-01-001-01 Rev. 01, Implementation of the National
Environmental Policy Act (Instruction Manual) establish the policies
and procedures that DHS and its components use to comply with NEPA and
the Council on Environmental Quality (CEQ) regulations for implementing
NEPA, 40 CFR parts 1500-1508.
[[Page 8548]]
The CEQ regulations allow federal agencies to establish, with CEQ
review and concurrence, categories of actions (``categorical
exclusions'') that experience has shown do not individually or
cumulatively have a significant effect on the human environment and,
therefore, do not require an Environmental Assessment (EA) or
Environmental Impact Statement (EIS).\9\ Categorical exclusions
established by DHS are set forth in Appendix A of the Instruction
Manual. Under DHS NEPA implementing procedures, for an action to be
categorically excluded, it must satisfy each of the following three
conditions: (1) The entire action clearly fits within one or more of
the categorical exclusions; (2) the action is not a piece of a larger
action; and (3) no extraordinary circumstances exist that create the
potential for a significant environmental effect.\10\
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\9\ See 40 CFR 1507.3(b)(2)(ii), 1508.4.
\10\ Instruction Manual section V.B(2)(a)-(c).
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As discussed in more detail throughout this final rule, DHS is
issuing this final rule to delay the effective date and postpone the
implementation of the H-1B Selection Final Rule. That rule is amending
regulations governing the selection of registrations or petitions, as
applicable, toward the annual H-1B numerical allocations based on the
wage level that equals or exceeds the proffered wage based on
occupational classification and area of intended employment.
Generally, DHS believes NEPA does not apply to a rule intended to
change a discrete aspect of a visa program because any attempt to
analyze its potential impacts would be largely, if not completely,
speculative. The same applies to a rule delaying the effective date of
such a rule that does not change the rule's substance, but only
postpones its effective date, and consequently pushes out the date on
which it will be implemented. This final rule does not alter the
statutory limitations on the numbers of nonimmigrants who may be issued
initial H-1B visas or granted initial H-1B nonimmigrant status, or
those who consequently will be admitted into the United States as H-1B
nonimmigrants, or those who will be allowed to change their status to
H-1B, or will extend their stay in H-1B status. DHS does not believe,
and cannot reasonably estimate whether, the delay in a rule that
establishes a wage-level-based ranking approach to select H-1B
registrations (or petitions in any year in which the registration
requirement were suspended) that DHS is implementing will affect how
many petitions will be filed for workers to be employed in specialty
occupations or whether the regulatory amendments herein will result in
an overall change in the number of H-1B petitions that ultimately will
be approved, and the number of H-1B workers who will be employed in the
United States in any FY. DHS has no reason to believe that delaying
these amendments to H-1B regulations will change the environmental
effect, if any, of the existing regulations. Therefore, DHS has
determined that, even if NEPA applied to this action, this final rule
clearly fits within categorical exclusion A3(d) in the Instruction
Manual, which provides an exclusion for ``promulgation of rules . . .
that amend an existing regulation without changing its environmental
effect.'' This final rule only delays another final rule and will
maintain the current human environment. This final rule is not a part
of a larger action and presents no extraordinary circumstances creating
the potential for significant environmental effects. Therefore, this
action is categorically excluded and no further NEPA analysis is
required.
IV. Paperwork Reduction Act
DHS is delaying the implementation of all changes to the H-1B
Registration Tool (OMB Control number 1615-0144) and Form I-129,
Petition for a Nonimmigrant Worker (Form I-129) (OMB Control number
1615-0009), associated with the H-1B Selection Final Rule until
December 31, 2021.
Alejandro N. Mayorkas,
Secretary, U.S. Department of Homeland Security.
[FR Doc. 2021-02665 Filed 2-4-21; 4:15 pm]
BILLING CODE 9111-97-P